94-0227
Income
Signed 4/11/96
BEFORE
THE UTAH STATE TAX COMMISSION
__________________________________
XXXXX,
Petitioners, : ORDER
:
v. : Appeal No. 94-0227
:
AUDITING DIVISION
OF THE : Account No.
UTAH STATE TAX COMMISSION, :
: Tax Type:
Income
Respondent. :
____________________________________
STATEMENT
OF CASE
Petitioner, herein, has filed a Motion for Order of
Dismissal on the grounds that he was not given sufficient time to file his
Petition for Reconsideration with the Commission.
The Petitioner acknowledges that the Findings of Fact,
Conclusions of Law and Final Decision were mailed to Petitioner on XXXXX, but
alleges that he did not receive it until XXXXX. However, Petitioner does not allege that he did not receive it
because of any fault of the Tax Commission, or whether it may have been because
Petitioner was out of town or for any other reason attributable to
Petitioner. Nevertheless, an Order was
signed granting the Petitioner an additional ten (10) day period in which to
file a Petition for Reconsideration.
However, Petitioner chose to not file such a Petition for
Reconsideration, but instead to file a Motion to Dismiss.
Section 63-46b-13, Utah Code Annotated, provides that the
twenty (20) days for requesting a reconsideration is after the date an Order is
issued, and not after the date when the Petitioner receives the Order. Further, the Commission deems all notices to
be effective immediately upon their execution and mailing. However, even Rule 6 of the Utah Rules of
Civil Procedure provides for only an additional three (3) day period when
service occurs by mailing. The
Commission determines that the Petitioner had sufficient time in which to file a
Petition for Reconsideration, and further determines that the Petitioner had
ten (10) days longer than were granted to him by state law.
While Petitioner has requested that the case be
dismissed, the Commission believes the Petitioner does not understand the
significance of his request. This
matter is based upon the appeal of Petitioner, and if he does not want it to go
forward, then he may simply withdraw it at his own request. However, such a withdrawal, or the granting
of a Motion to Dismiss, would not terminate the audit assessment made by the
Auditing Division. Further, because the Commission has previously issued a
final decision in this case which was not timely appealed and for which a
timely Petition for Reconsideration was not filed, the Commission does not have
any further jurisdiction to act in this case.
The only issue still before the Commission is the collection of any
amounts determined to be due to the Commission. To the extent the Commission may have any remaining jurisdiction,
the Motion to Dismiss filed by the Petitioner is hereby denied.
DATED this 11 day of April, 1996.
BY ORDER OF THE UTAH STATE
TAX COMMISSION:
W. VAL
OVESON, CHAIRMAN ROGER
O. TEW
Commissioner Commissioner
JOE B.
PACHECO ALICE
SHEARER
Commissioner Commissioner
^^